The Constitution - The treaty power

Photo by: Stephen Coburn

Assumption of broad foreign relations powers by the executive, largely
built atop the removal of specific checks by the Senate, has claimed the
treaty power as one of its principal casualties. The diminution of the
Senate's constitutional role as a treaty partner could not have
been envisioned by the Constitutional Convention, which, with less than
two weeks left in its proceedings, vested in the Senate alone the power to
make treaties. As late as 6 September, the draft constitution of the
Committee on Detail had given the Senate the exclusive authority to make
treaties and appoint ambassadors. During the debate Madison pointed out
that the "Senate represented the states alone," and,
consequently, "the president should be an agent in
Treaties." Madison, who hailed from Virginia, along with other
delegates from large states, were concerned about Senate control of the
treaty power. As a result of "the Great Compromise," which
gave states equal representation in the Senate, large-state delegates were
seeking means to control the Senate. They feared that the Senate would be
convulsed by regional economic and state interests that would compromise
the national interests in the pursuit of commercial treaties. A version of
Madison's proposal eventually prevailed. Article 2 of the
Constitution gives the president the "power, by and with the Advice
and Consent of the Senate, to make Treaties, provided two thirds of the
Senators present concur."

The convention's belated addition of the president to the
treaty-making power reflected the Framers' desire to
"check" the Senate in the formulation of foreign policy, an
application to foreign relations of the doctrine of checks and balances
and collective decision-making. There was nothing in the language of the
provision, or in the records of the convention debates, to indicate that
the president would assume the dominant role in foreign affairs. There was
no hint that the president would enjoy any significant independent role in
treaty-making. The requirement of a two-thirds majority acted to limit any
independent power of the president in foreign relations. In fact, as
Hamilton explained in
Federalist
No. 75, "the vast importance of the trust, and the operation of
treaties as laws, plead strongly for the participation of the whole or a
portion of the legislative body in the making of them…. It must
indeed be clear to a demonstration that the joint possession of the power
in question, by the president and Senate, would afford a greater prospect
of security, than the separate possession of it by either of them."
Hamilton's emphasis on the cooperative nature of treaty-making,
from negotiation through ratification, is reflected in the further
requirement of senatorial "advice and consent." The Framers
borrowed the phrase from English parliamentary practice, which was
descriptive of continuous participation in lawmaking. No bill could be
enacted into law by the king without the advice and consent of both houses
of Parliament. The employment of that phrase in the treaty clause was
meant to convey Senate participation in all stages of treaty-making. It is
not suggestive in any way of a treaty-making process that is divided into
two distinct stages: negotiation by the president and approval by the
Senate. But that phrase is otherwise employed in the appointment clause to
indicate a process that does depend on exclusive and sequential steps: the
president "shall nominate, and by and with the Advice and Consent
of the Senate, shall appoint Ambassadors."

When President George Washington first communicated with the Senate
regarding the appropriate procedure for treaties, he assumed the process
of negotiating treaties was a matter of joint participation. He advised a
Senate committee that oral communications "seem indispensably
necessary; because in these a variety of matters are contained, all of
which not only require consideration, but some of them may undergo much
discussion; to do which by written communications would be tedious without
being satisfactory." This approach indicates an active, continuous,
consultative role for the Senate. Washington, moreover, repeatedly
expressed his intention to send "propositions" to the
Senate, a solicitation of Senate "advice" on of treaties.

In a well-known message to the Senate on 21 August 1789, Washington stated
his intention to meet with senators in the Senate chamber "to
advise with them on the terms of the treaty to be negotiated with the
Southern Indians." Washington intended to seek the Senate's
advice before, not after, the negotiation of a treaty. He met with
senators the next day, put to them a series of questions, and sought their
advice on the instructions that should be given to the commissioners
selected to negotiate the treaty. Both sides were disappointed. Senators
exhibited unease in relying solely on the information supplied by the
secretary of war, who had accompanied Washington. The noise from carriages
traveling past the chambers made it difficult to follow the discussion.
When the senators announced that they would not commit themselves to any
positions that day, Washington felt inconvenienced by the trip. He
returned two days later and obtained the Senate's answers to his
questions and its consent to the treaty, but he never again went to seek
the Senate's advice on a treaty proposal.

It is a misreading of the incident to conclude that Washington had
determined to exclude the Senate from any role in the negotiation process.
Oral communications proved to be impracticable; but Washington continued
to seek the Senate's advice through written communications rather
than personal appearances. Senators were asked to approve the appointment
of treaty negotiators and to advise on their negotiating instructions.
Since the earliest day of the Republic, there have been many examples of
executive-Senate discussions regarding treaty negotiations.

The twentieth century, however, witnessed the erosion of this joint effort
and the assumption by presidents that negotiation was an exclusively
executive concern. As an academic, Woodrow Wilson had argued, in
Congressional Government
(1885), that the president could treat the Senate with indifference. He
encouraged the president to pursue negotiations independently, without
consulting the Senate. He reasoned that after these unilateral actions,
the Senate could be bullied into granting its "consent," if
not its "advice," with the nation's honor at stake.
This "mousetrap theory" had disastrous consequences for the
nation in the aftermath of World War I. One of Wilson's gravest
miscalculations was his decision to exclude prominent senators from the
negotiation of the Versailles treaty. Efforts by the executive to present
the Senate with a fait accompli can backfire; the Senate may retaliate by
adding amendments, shelving treaties, or rejecting them outright.

While the Constitution requires joint action by the president and Senate
in making treaties, it is silent on the repository of the authority to
terminate treaties. The Framers certainly were aware of the fact that
treaties, for a variety of reasons, might require termination, and
international law provided rules and regulations to govern their repeal.
Madison and Jay, among others, seemed to believe that treaties ought to be
terminated by the president and the Senate, and, historically, some have.
But the historical record also includes repeal by unilateral presidential
action and by Congress as a whole. Since Article 6 vests treaties with the
same domestic status as federal statutes, treaties may be terminated by
subsequent acts of Congress through the regular legislative process. The
fact that the House of Representatives, which is not a part of the treaty
power, can play a role in terminating, if not making, treaties, may appear
to be anomalous. The same may be said of the argument for a unilateral
presidential termination power, which would negate the philosophy of the
convention and the entire foreign policy apparatus, which is erected on
the premise of collective decisionmaking. The issue of the authority to
terminate treaties came to a head in 1979 with President Jimmy
Carter's announcement that he intended to terminate the 1954 mutual
defense treaty with Taiwan. The decision resulted in a lawsuit,
Goldwater
v.
Carter
(1979), in which the Supreme Court declined to reach the merits of the
case and dismissed it as "nonjusticiable." The practical
effect of the decision left President Carter's act of termination
intact. While the question of treaty termination was pushed aside
temporarily, it seemed likely to become prominent again.

The president and the Senate may clash over the continued meaning of a
treaty. Once a treaty takes effect, the president is principally
responsible for its interpretations and implementation. A treaty is a law,
and under the Constitution the president is charged with its faithful
execution. But a president may not "reinterpret," that is,
ascribe to a treaty a meaning contrary to what the Senate understood it to
mean at the time it granted its consent. Disagreements have arisen between
the president and the Senate on interpretations of the 1972 Anti-Ballistic
Missile (ABM) Treaty, on the question of the amenability of that treaty to
the development of new weapons systems. As a result it is likely that the
Senate will carefully examine future treaties and make publicly known in
clear terms its understanding of particular treaty provisions.